Ontario Premier Doug Ford is criticizing the province’s criminal justice system after a resident was charged with assault for reportedly fighting an intruder in his home, and one Toronto lawyer says residents are growing increasingly frustrated with victim-blaming.
At around 3:20 a.m. on Aug. 18, police responded to a report of a fight between two men. When they arrived, they learned that the resident of an apartment woke up to find an intruder in his home. The two men reportedly had an altercation in the apartment, where the intruder sustained serious, life-threatening injuries. He was then taken to Ross Memorial Hospital before being air-lifted to a hospital in Toronto.
The intruder, a 41-year-old Lindsay man, has been charged with Possession of a Weapon for a Dangerous Purpose, Break, Enter and Theft, Mischief Under $5,000 and Failure to Comply With Probation
He will be remanded in custody once he is released from the hospital. Police say he was already wanted by police for unrelated offences.
Meanwhile, the man whose apartment was broken into was charged with Aggravated Assault and Assault With a Weapon. He was released with a future court date.
Premier Doug Ford commented on the incident on Wednesday during an unrelated press conference and told reporters that something within the criminal justice system is “broken.’
“I know if someone breaks into my home, or someone else’s, you’re gonna fight for your life. This guy has a weapon, you’re gonna use any force you possibly can to protect your family,” Ford said.
Ford was also critical of the province’s bail system.
“Violence, and breaking into people’s homes, putting guns to their heads, and guess what, some bleeding heart judge [will say], ‘Little Johnny, he didn’t have a good upbringing, so we’re gonna let him out on bail five more times… Just to go and do the same thing the next day,’ the premier continued, saying that people in Ontario are tired of the system.
“You should be able to protect your family when someone’s going in there to harm your family and your kids, you should use all resources you possibly can to protect your family, and maybe these criminals will think twice before breaking into someone’s home.”
A RIGHT TO SELF-DEFENCE
Patrick Colquhoun, an associate lawyer with Toronto firm Sabsay Lawyers, tells Now Toronto that Canadians are entitled by law to exercise self-defence to protect themselves and their property. However, there are statutory limitations.
“Proportionality is often a key consideration in self-defence cases. For example, one cannot respond to a slap in the face by stabbing or shooting the aggressor, as that would be a disproportionate response,” Colquhoun told Now Toronto.
But the lawyer says that many people in Ontario are tired of “the victim-blaming” that he says is becoming increasingly common in Ontario.
“Generally speaking, the Crown should – as a matter of public policy – be hesitant to charge persons such as the homeowner in this case, who was only forced to resort to violence upon his home being invaded in the middle of the night by an armed intruder,” Colquhoun said.
“The suggestion of the police and Crown appear to indicate that the homeowner should have not fought back and just let his home be ransacked, which I suspect few members of the public would agree with.”
Colquhoun says that intruders should know that, if and when they enter somebody’s home, there is a real risk that they will be met with defensive force.
“At present, I suspect that the growing tendency to charge homeowners acting in self-defence is only emboldening intruders, who now know that many homeowners will be afraid to fight back for fear of getting charged.”
He added that while the scope of the laws about self-defence and defence of property may be too broad in the United States, recent trends indicate that they appear to be too narrow in Canada.
Colquhoun says that the overarching question in this case is likely to be whether the alleged acts of self-defence by the man whose home was broken into were reasonable under the circumstances.
The court will determine this by considering the factors listed in section 34(2) of the Criminal Code. This includes the nature of the force or threat posed by the intruder, the extent to which the use of force was imminent by the intruder, and whether there were other means available to the homeowner to respond to the potential use of force, like retreating. Other factors include the homeowner’s role in the incident, whether a weapon was used by either party, physical differences between the intruder and resident, like size, age, gender, and physical capabilities and whether the homeowner’s response was proportionate to the threat posed by the intruder.
Meanwhile, when it comes to protecting your property, the lawyer says that under the “Defence of Property” provision of the Criminal Code, a person in peaceful possession of property may use reasonable force to prevent or stop unlawful interference with their property.
“In this case, the homeowner must have been in peaceful possession of their home and reasonably believed that the intruder was about to enter their home and/or take their property,” he explained.
If these conditions were met, Colquhoun says the homeowner was entitled to use force if it was done to prevent the intruder from entering onto, or taking, their property and the force applied was reasonable.
In order to determine if the force used was reasonable, courts will consider what a reasonable person in the same circumstances as the homeowner would have done through what is called a modified objective test.
IS THE RESIDENT LIKELY TO BE CONVICTED?
Colquhoun explained that without knowing all of the details, he can’t determine whether or not the resident is likely to be convicted, but he considers it unlikely.
He says that the law recognizes that the homeowner cannot be expected to determine, in the heat of the moment, exactly what degree of force he was legally entitled to respond with.
“It is trite law that a person under attack ‘cannot be expected to weigh to a nicety the exact measure necessary of defensive action’ required to subdue an aggressor,” the lawyer explained.
“All he knew in that moment was that there was an imminent threat to his person and property, and that he had to subdue that threat to protect himself and his home, which he did,” he explained. “With that in mind, I consider it unlikely that the homeowner will be convicted of any form of assault, with the caveat that I would need all of the facts to make a proper determination.”
A conviction of aggravated assault carries a maximum penalty of 14 years in prison, and there is no mandatory minimum.
Meanwhile, assault with a weapon is a “hybrid offence” which allows the Crown to decide whether to proceed summarily or by indictment. If the Crown proceeds with a summary, the maximum punishment for this offence is 18 months in jail, while if the Crown proceeds by indictment, the maximum punishment is 10 years’ imprisonment. This offence also does not carry a mandatory minimum.
But even if he is convicted, the resident will not receive anywhere close to the maximum sentence.
“The circumstances of the offence and the offender are highly mitigating and would reduce his sentence greatly.”
